07 July 2016

In order to unlawfully discriminate a Tribunal requires to ascertain what the reason for the alleged less favourable treatment was. In the case of Geller v Yeshurun Hebrew Congregation a husband and wife were dismissed as redundant. Mrs Geller argued that she had suffered unlawful direct sex discrimination. The Employment Tribunal dismissed that claim, finding that she had not been treated less favourably because of her sex.

The Employment Appeal Tribunal upheld her appeal and found that in this case the Employment Tribunal had failed to consider the potential for subconscious unlawful discrimination.

There are 2 types of unlawful direct discrimination cases:

• One is where the discrimination is obvious from the treatment itself (such as where the Employer refuses to appoint women – gender is obviously the reason for the treatment). 
• In the other type of case, the reason for the treatment may not be obvious. Thus appointing staff on “merit” could potentially be unlawful if the actual reason was gender (even if the employer said (and thought) it was merit).

It is only in the first category of case (i.e. where the discrimination is inherent in the act complained of) that an Employment Tribunal does not need to enquire into the mental processes of the alleged discriminator.

The Employment Appeal Tribunal remitted the case back to the original Tribunal to consider the matter further.

This case is important in reminding employers that it is possible to unlawfully discriminate even where the reason for the treatment, on the face of it, appears to be legitimate and unrelated to the protected characteristic. The rules on burden of proof require the employer to be able to show that the reason for the treatment was “in no sense whatsoever” due to the protected characteristic in cases where the Claimant has brought evidence from which an inference of less favourable treatment can be drawn. The motive for the treatment is irrelevant if the Tribunal finds that the protected characteristic was the reason why the employer acted.

Employers should therefore ensure that decisions are taken for legitimate reasons and that there is a clear paper trail justifying the decision and showing the real reason for the treatment. As ever speak to one of the team for more information.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.

Reference: Geller v Yeshurun Hebrew Congregation